a) Freedom of amortization in new elements of fixed tangible assets. Transitional regime for amounts pending application as of March 31, 2012
Regulations: Thirtieth Additional Provision Law Personal Income Tax and thirteenth transitional provision LIS
The transitional regime is applicable to taxpayers of Personal Income Tax who as of March 31, 2012 had amounts pending to be applied for the following investments that have enjoyed the freedom of amortization of the eleventh Additional Provision of the consolidated text of LIS :
Investments made in the years 2009 and 2010 to which the freedom of amortization is applicable with maintenance of employment of the eleventh Additional Provision of the consolidated text of the LIS, according to the wording given by Royal Decree-Law 6/2010, of April 9, on measures to promote economic recovery and employment ( BOE of April 13) .
Investments made from January 1, 2011 to March 30, 2012 to which the freedom of amortization is applicable without maintenance of employment the eleventh Additional Provision of the consolidated text of the LIS , according to the wording given by Royal Decree-Law 13/2010, of December 3, on actions in the fiscal, labor and liberalizing fields for promote investment and job creation ( BOE of December 3). This last regime of freedom of amortization was also applicable to investments made between December 3, 2010 and December 31, 2010 when the entity had not complied with the requirement of maintaining employment.
Content of the transitional regime
Taxpayers who, as of March 31, 2012, had not fully amortized the investment made for this concept may continue to apply the amounts outstanding under the conditions and with the requirements established by the eleventh Additional Provision of the consolidated text of the LIS , according to the wording given by Royal Decree-Law 6/2010, of April 9 and by Royal Decree-Law 13/2010.
Limit on the application of outstanding amounts
The amounts pending amortization may be applied with the limit of the positive net return of the economic activity to which the assets have been affected prior to the deduction of the pending amounts and, where appropriate, the reduction of 5% for provisions. and expenses that are difficult to justify provided for the simplified direct estimation modality.
Important: This limit is also applicable to investments made until March 31, 2012 that correspond to new elements commissioned under contracts for the execution of works or investment projects whose execution period, in both cases, requires a period of more than two years. between the date of commissioning or start of the investment and the date of its being made available or put into operation, to which any of the freedom of amortization regimes of the eleventh additional provision of the consolidated text of is applicable LIS ##1##.
Consequences of applying the freedom of amortization in the transfer of assets
The transmission in 2022 of assets that would have enjoyed the freedom of amortization of the eleventh Additional Provision of the consolidated text of the LIS, has two consequences:
In the calculation of the capital gain or loss, the acquisition value will not be reduced by the amount of tax-deducted amortization that exceeds that which would have been tax deductible if the freedom of amortization had not been applied.
In relation to the calculation of the capital gain or loss of elements assigned to the activity, see Chapter 11.
The excess between the amount of the tax-deducted amortizations and the amount of the amortizations that would have been tax deductible if the latter had not been applied will, for the transferor, be considered the full return of the economic activity in the tax period in which the transfer is made. transmission.
See in the section "Computable full income" what is indicated about the transmission of assets that have enjoyed free amortization in this Chapter 7 and the thirtieth Additional Provision of the Personal Income Tax Law.